Lasting Powers of Attorney (LPAs)

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Christopher Andrews

Alison Laver

Documents

Lasting Powers of Attorney (LPA) is a way of giving someone you trust the legal authority to make decisions on your behalf, if you lack mental capacity and are no longer able to make decisions for yourself.

Lasting Powers of Attorney can be invaluable when it comes to dealing with an incapacitated family member and loved one at a very sensitive, difficult and emotional time. Our team offer comprehensive and detailed advice when it comes to creating your Lasting Powers of Attorney documentation and will take you through a simple, step by step process, providing you with a tailored set of documents to meet your specific and individual requirements. The appointed person is given the legal right to manage your finances, property and health and welfare decisions.

It is our job to shed light on the opportunities available to you and put you at ease, knowing you have completed the right paper work to prepare you and your family for the future. We help our clients gain meaningful control of what decisions are made around their property, finance and health and welfare.

A Lasting Power of Attorney is relevant to almost everyone, no matter the size of your estate. It will give you a peace of mind knowing that if you were to lose capacity in the future and unable to look after your affairs, you have appointed a trusted individual who can look after you and your estate in the way that you would want them to.

The process of creating a Lasting Powers of Attorney does involve a cost, however it is a document that only needs to be created once and there is no recurring charge.

Types of Lasting Powers of Attorney:

Property and Financial Affairs

An LPA for Property and Affairs is an exceptionally useful document as it allows an individual (the Donor) to appoint a person or persons (the Attorney) to look after their property and financial affairs in the event that they no longer have the physical or mental ability to do so.

The donor may find themselves physically unable to do the day-to-day management of their finances, such as visiting the bank and dealing with utility bills and therefore needing someone to help. In these types of circumstances, an LPA would be ideal as the Attorney can take instructions from the Donor and perform the tasks that the Donor is unable to do.

Alternatively, there could be mental capacity issues, such as the early diagnosis of Dementia or Alzheimers and therefore an Attorney will need to be put in place as soon as possible. If a relative has received such a diagnosis, we suggest that you immediately seek legal advice to establish whether your relative has the capacity to enter into an LPA.

We understand that couples often have joint bank accounts, therefore if an issue does arise, their spouse can still access the joint finances and continue the day-to-day management of such. However, we still recommend that couples have LPA’s in place since it offers them greater legal protection and allows them to prepare for any problems that may arise in the future.

Health and Welfare

An LPA for Health and Welfare is another exceptionally useful document as it allows an individual (the Donor) to appoint a person or persons (the Attorney) to look after their health and welfare in the event that they no longer have the mental ability to do so.

A key distinction for the Health and Welfare LPA is that it can only be used by the Attorney once the Donor has lost mental capacity. At that point, the Attorney can start to make the necessary decisions regarding the Donor’s health and welfare.

The LPA allows the Donor to decide whether their Attorneys can have the ability to make decisions about life sustaining treatment, in the event that the Donor no longer has the capacity to make this decision. It can often be reassuring for the Donor to know that their Attorneys have the ability to make such decisions, and that their wishes will be complied with even when they can no longer express them.

Enduring Power of Attorney

In 2007, the Mental Capacity Act 2005 was implemented and radically changed the way in which people could plan for their future, should they lose capacity. Previously, this involved an Enduring Powers of Attorney (EPA’s) however, this was replaced with what is now called, Lasting Powers of Attorney.

An Enduring Power of Attorney (EPA) is a legal document that enables a person (the Donor) to appoint a person or persons (the Attorneys) to manage their financial affairs and property.

An EPA can be used by the Attorneys as soon as it is created and does not have to be registered. However, if the Donor loses capacity (i.e. suffers from Dementia or is incapacitated) then the EPA will need to be registered so that the Attorney can continue to use this.

Although the creation of an EPA has been replaced by Lasting Powers of Attorney, this does not invalidate your existing EPA provided it was completed prior to 1st October 2007. If you have any queries about EPA’s, please get in touch with our team.

Ordinary Power of Attorney

This Power of Attorney can be effective for a specified period of time, for example, if you are taking a trip abroad or in respect of specific matters, such as a house purchase of sale. As the Donor will be legally competent, this does not need to be registered with the Office of the Public Guardian.

Please find our guide to creating Lasting Powers of Attorney in the documents box on the right. This guide also includes our current charge structure.

We have also prepared a Lasting Power of Attorney instruction sheet which aims to help you understand what information you will require if you decide to create these documents.

LPA Assessment

At the time of an individual’s financial assessment for care fees, the Local Authority must establish whether the individual has capacity to undergo this assessment. If there is a lack of capacity, they must research whether the individual has any of the following:

Enduring Power of Attorney (EPA)

Lasting Power of Attorney (LPA) for Property and Affairs

Lasting Power of Attorney (LPA) for Health and Welfare

Property and Affairs Deputyship under the Court of Protection or, any other person dealing with that person’s affairs (e.g. someone who has been given appointee-ship by the Department for Work and Pensions (DWP) for the purpose of benefits payments)

If so, then the appropriate person will need to be involved with the assessment. Individuals who lack capacity and who do not have any of the above people involved may require an appointment of a Property and Affairs Deputyship.

The Deputy application to the Court of Protection does take some time and is of a higher cost. However, once an Order for Deputyship is received, the Deputy is able to maintain and administer the funds of the person who no longer has capacity. If this person has a considerable amount of capital, it is important this is taken care of, solely for their benefit.